March 25, 2002

Mr. James L. Hall
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 13084
Austin, Texas 78711

OR2002-1454

Dear Mr. Hall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 160251.

The Texas Department of Criminal Justice ("TDCJ") received a request for the Stevenson Unit 3^rd shift rosters for September 28, 2001 through October 3, 2001. You claim that the requested information is excepted from disclosure under section 552.108 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

The Public Information Act requires a governmental body that wishes to withhold requested information to request a decision from the attorney general as to whether the information is within an exception to disclosure within ten business days of the governmental body's receipt of the request for information. Gov't Code § 552.301(d). Failure to comply with the requirements of section 552.301 results in the presumption that the information is public. Gov't Code § 552.302. You state that TDCJ is "making this request out of time." You therefore acknowledge that TDCJ did not timely submit its request for a decision. Accordingly, the requested information is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. A compelling reason is demonstrated where information is made confidential by other law or where third party interests are at issue. Open Record Decision No. 150 (1977). Section 552.108 does not provide a compelling reason to withhold information when it is raised, as here, to protect the interest of the governmental body that is seeking to withhold information. See, e.g., Open Records Decision No. 522 (1989). Therefore, as you raise no other exceptions to disclosure of the requested information, it must be released to the requestor.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael A. Pearle
Assistant Attorney General
Open Records Division
MAP/seg
Ref: ID# 160251
Enc. Submitted documents

c: Ms. Petra Reyna
402 East Texas
Cuero, Texas 77954
(w/o enclosures)

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